BILL ANALYSIS SB 1253 Page 1 SENATE THIRD READING SB 1253 (Tony Strickland) As Amended April 27, 2010 Majority vote SENATE VOTE :34-0 PUBLIC SAFETY 5-0 ----------------------------------------------------------------- |Ayes:|Hagman, Gilmore, Hill, | | | | |Portantino, Skinner | | | | | | | | ----------------------------------------------------------------- SUMMARY : Prohibits a person convicted of lewd or lascivious acts upon or with the body of a child, or of continuous sexual abuse of a child, from being placed or residing within one-half mile of the child victim's residence for the duration of his or her probation term unless the court, on the record, states its reasons for finding that this residency restriction would not serve the best interest of the victim. EXISTING LAW : 1)Provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any of the following persons: a) A person who is convicted of violating Penal Code Section 288 (lewd or lascivious act) or 288.5 (continuous sexual abuse of a child) when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person; b) A person who caused bodily injury on the child victim in committing a violation of Penal Code Section 288 or 288.5; c) A person who is convicted of a violation of Penal Code Section 288 or 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Penal Code Section 288 or 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older; SB 1253 Page 2 d) A person who used a weapon during the commission of a violation of Penal Code Section 288 or 288.5; e) A person who is convicted of committing a violation of Section 288 or 288.5 and who has been previously convicted of a violation of rape, rape of a spouse, rape or penetration of genital or anal openings by a foreign object, inveiglement or enticement of an unmarried female under 18 for purposes of prostitution, unlawful sexual intercourse when consent is procured by false or fraudulent representation with intent to create fear, abduction of a person under 18 for the purpose of prostitution, incest, sodomy, lewd or lascivious act, continuous sexual abuse of a child, oral copulation, or forcible acts of sexual penetration, or of assaulting another person with intent to commit a crime with the intent to commit mayhem, rape, sodomy, oral copulation, or who has been previously convicted in another state of an offense which, if committed or attempted in this state, would constitute an offense enumerated in this paragraph; f) A person who violated Penal Code Section 288 or 288.5 while kidnapping the child victim; g) A person who is convicted of committing a violation of Penal Code Section 288 or 288.5 against more than one victim; h) A person who, in violating Penal Code Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age; or, i) A person who, in violating Penal Code Section 288 or 288.5, used obscene matter, or matter depicting sexual conduct. 2)States that if a person is convicted of a violation of Penal Code Section 288 or 288.5, and the factors listed in the aforementioned subdivision (a) are not pled or proven, probation may be granted only if the following terms and conditions are met: a) If the defendant is a member of the victim's household, SB 1253 Page 3 the court finds that probation is in the best interest of the child victim; b) The court finds that rehabilitation of the defendant is feasible and that the defendant is amenable to undergoing treatment, and the defendant is placed in a recognized treatment program designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence; c) If the defendant is a member of the victim's household, probation shall not be granted unless the defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by his or her return. While removed from the household, the court shall prohibit contact by the defendant with the victim, with the exception that the court may permit supervised contact, upon the request of the director of the court-ordered supervised treatment program, and with the agreement of the victim and the victim's parent or legal guardian, other than the defendant; and, d) The court finds that there is no threat of physical harm to the victim if probation is granted. 3)Mandates notwithstanding any other provision of law, an inmate who is released on parole shall not be returned to a location within 35 miles of the actual residence of a victim of, or a witness to, a violent felony or a felony in which the defendant inflicts great bodily injury on any person other than an accomplice that has been charged and, if the victim or witness has requested additional distance in the placement of the inmate on parole, and if the Board of Parole Hearings or the Department of Corrections and Rehabilitation (CDCR) finds that there is a need to protect the life, safety, or well-being of a victim or witness. 4)Requires an inmate who is released on parole for a violation of Penal Code Section 288 or 288.5 whom the CDCR determines poses a high risk to the public shall not be placed or reside, for the duration of his or her parole, within one-half mile of any public or private school including any or all of Kindergarten and Grades 1 to 12, inclusive. SB 1253 Page 4 5)Requires any inmate convicted of a felony registerable sex offense and who is committed to prison and released on parole shall be monitored by global positioning system for the term of his or her parole. 6)States that any person who commits lewd and lascivious acts upon the body, or any part thereof, of a child under the age of 14 years, with the intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child is punishable by imprisonment in the state prison for three, six or eight years. 7)Defines "continuous sexual abuse of a child" as three or more acts of substantial sexual conduct with a child under the age of 14 years, or three or more acts of lewd and lascivious conduct with a child under the age of 14 years, over a period of not less than three months in duration. Continuous sexual abuse of a child is punishable by imprisonment in the state prison for 6, 12, or 16 years. 8)Provides for the "one-strike" sex crime sentencing law that provides sentences of 15-years or 25-years-to-life in certain sex crimes if specified circumstances in aggravation are found to be true. 9)Specifies that the qualifying sex crimes under the one-strike sex law are punishable by imprisonment in the state prison for life, and the defendant shall not be eligible for release on parole for 15 years or 25 years, as specified. These crimes are forcible rape, forcible spousal rape, rape by a foreign object, forcible sodomy, forcible oral copulation, lewd and lascivious acts with a child under the age of 14 accomplished by force or duress, and lewd and lascivious acts with a child under the age of 14 accomplished by other than force or duress where the defendant is not eligible for probation. [Penal Code Section 667.61(a) and (c).] FISCAL EFFECT : None COMMENTS : According to the author of this bill, "Child or continuous sexual abuse of a child from being granted probation. If the defendant is eligible for probation, then probation is granted only if certain terms and conditions are met. These SB 1253 Page 5 terms and conditions do not currently prohibit the defendant from living near their child victim. "If this same defendant is convicted and granted parole, current law does allow for a residence restriction to be imposed. An offender, who is found to be a high risk by CDCR, shall not be placed or reside within one-half mile of any school. "These children have suffered unimaginable harm, regardless of whether the offender is convicted of a misdemeanor or a felony. The children should not be further traumatized and forced to live near their attacker. We should do everything possible to ensure the safety of the victim and restore their sense of security in the neighborhood." Please see the policy committee for a full discussion of this bill. Analysis Prepared by : Nicole J. Hanson / PUB. S. / (916) 319-3744 FN: 0004866